Karnataka High Court
Smt.Neelawwa Basalingappa Dalal vs Smt.Savakka @ Shantawwa on 25 January, 2025
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RFA No. 100040 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 100040 OF 2016 (PAR)
BETWEEN:
1. SMT. NEELAWWA BASALINGAPPA DALAL,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: YADAWAD, TQ: GOKAK,
DIST: BELAGAVI.
2. MALLAPPA S/O BASALINGAPPA DALAL,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: YADAWAD, TQ: GOKAK,
DIST: BELAGAVI.
3. SRI. SURESH BASALINGAPPA DALAL
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: YADAWAD, TQ: GOKAK,
Digitally signed
DIST: BELAGAVI.
by
MOHANKUMAR 4. SRI. RAJASHEKHAR BASALINGAPPA DALAL
B SHELAR
Location: High AGE: 35 YEARS, OCC: AGRICULTURE,
Court of
Karnataka, R/O: YADAWAD, TQ: GOKAK,
Dharwad Bench DIST: BELAGAVI.
5. SMT. SUNANDA W/O MURIGEPPA CHINIWAL,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O UTTUR, TQ: MUDHOL,
DIST: BAGALKOT.
6. SMT. SHANTAWWA W/O IRRAPPA DALAL,
AGE: 54 YEARS, OCC: AGRICULTURE,
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RFA No. 100040 of 2016
R/O: YADAWAD, TQ: GOKAK,
DIST: BELAGAVI.
7. SMT. SULOCHANA @ SHOBHA
W/O SHANKAR JAMBAGI @ ALLIGIDAD,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: KULLUR, TQ: RAMADURG,
DIST: BELAGAVI.
8. SMT. MANJULA W/O SURESH RAMATEERTH,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: NO.405, GULAGALAJAMBAGI,
MUDHOL, TQ: MUDHOL, DIST: BAGALKOT.
9. SMT. SAVITRI W/O MANINGAPPA
CHINIWAL @ SHETTAR,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: UTTUR, TQ: MUDHOL,
DIST: BAGALKOT.
10. SRI. MALLAPPA S/O IRRAPPA DALAL,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O: YADAWAD, TQ: GOKAK,
DIST: BELAGAVI.
11. SRI. DANAPPA MALLAPPA DALAL,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: YADAWAD, TQ: GOKAK,
DIST: BELAGAVI.
...APPELLANTS
(BY SRI. F.V PATIL, ADV)
AND:
1. SMT. SAVAKKA @ SHANTAVVA
W/O MALLAPPA PATTED,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: DHAVALESHWAR,
TQ: BAILHONGAL, DIST: BELAGAVI.
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RFA No. 100040 of 2016
2. SMT. GOURAVVA SHANKAREPPA KOUJALAGI,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: YADAWAD, TQ: GOKAK,
DIST: BELAGAVI.
3. KALAVVA W/O BABU ARIBENCHI,
AGE: 72 YEARS, OCC: AGRICULKTURE,
R/O: ITIGALLI, NEAR HANUMAN TEMPLE,
RAMDURG, DIST: BELAGAVI.
4. SRI. CHANNAPPA S/O. DANAPPA DALAL,
SINCE DECEASED BY HIS LR'S
4a. SMT. NINGAVVA ARUN SOGALAD,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: YADWAD VILLAGE,
TQ: GOKAK, DIST: BELAGAVI.
5. SRI. BASAPPA IRAPPA VASANAD,
SINCE DECEASED BY HIS LR'S.,
5a. SAVAKKA W/O BASAPPA VASANAD
AGE: 45 YEARS, OCC: HOUSEWIFE
R/O: YADWAD, TQ: MUDALAGI,
DIST: BELAGAVI.
5b. ANIL S/O BASAPPA VASANAD
AGE: 28 YEARS, OCC: AGRICULTURE
R/O: YADWAD, TQ: MUDALAGI,
DIST: BELAGAVI.
5c. SUNIL S/O BASAPPA VASANAD
AGE: 24 YEARS, OCC: AGRICULTURE
R/O: YADWAD, TQ: MUDALAGI,
DIST: BELAGAVI.
6. SMT. SHANTAWWA W/O BASALINGAPPA
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RFA No. 100040 of 2016
SATTIGERI, AGE: 58 YEARS,
OCC: AGRICULTURE, R/O: YADAWAD,
TQ: GOKAK, DIST: BELAGAVI.
7. SMT. SUVARNA W/O. BASAPPA DALAL
(Since R7 deceased, his LRs R8, 9 and 10 are already on record)
8. SMT. IRAWWA SURESH SATTIGERI
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O YADAWAD, TQ: GOKAK,
DIST: BELAGAVI.
9. BASAVVA D/O BASAPPA DALAL,
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O: YADAWAD, TQ: GOKAK,
DIST: BELAGAVI.
10. SMT. MAHA4DEVI W/O DUNDAPPA GOONDI,
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O: MASAGUPPI, TQ: GOKAK,
DIST: BELAGAVI.
11. SRI. ISHWAR BASAPPA DALAL,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: YADAWAD, TQ: GOKAK,
DIST: BELAGAVI.
12. SMT. KASTURI W/O SHRISHAIL BADAMI,
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O: YADAWAD, TQ: GOKAK,
DIST: BELAGAVI.
13. SMT. CHAMBAWWA
W/O BASAPPA ARIBENCHI,
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: RAMADURG, TQ. RAMADURG,
DIST. BELAGAVI.
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RFA No. 100040 of 2016
14. SMT. SAROJA W/O MAHADEVAPPA DALAL,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: YADAWAD, TQ: GOKAK,
DIST: BELAGAVI.
15. SRI. MALLAPPA S/O. MAHADEVAPPA DALAL,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: YADAWAD, TQ: GOKAK,
DIST: BELAGAVI.
16. SMT. SHARAWWA W/O SIDDAPPA DALAL,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: YADAWAD, TQ: GOKAK,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. VINAY S KOUJALAGI, ADV FOR R1 & R2
V/O DTD. 14.02.2017, NOTICE TO R4(A), R6, R8 TO R11 &
R13 TO R16 ARE SERVED, V/O DATED 16.11.2022, R8 TO R10
ARE LR'S OF DECEASED R7)
THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER XLI RULE 1 AND 2 OF CPC., AGAINST THE JUDGMENT
AND DECREE DATED 17.10.2014 PASSED IN O.S.NO.92/2008
ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE,
GOKAK, PARTLY DECREEING THE SUIT FILED FOR PARTITION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
CORAM: AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
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RFA No. 100040 of 2016
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)
This regular first appeal is filed by the appellants,
challenging the judgment and preliminary decree dated
17.10.2014 passed in O.S.No.92/2008 by the learned I
Additional Senior Civil Judge, Gokak.
2. For convenience, the parties are referred to,
based on their ranking before the trial court. The
appellants were defendant Nos.2 to 8. Respondent Nos.1
and 2 were the plaintiffs and other respondents were the
defendants.
3. Brief facts leading rise to the filing of this
appeal, are as follows:
The plaintiffs filed a suit against the defendants for
partition and separate possession. It is the case of the
plaintiffs that propositus Mallappa died in the year 1965,
leaving behind his widow Borawwa, three sons i.e,
Basalingappa, Irappa (defendant No.7) Danappa
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(defendant No.8), and three daughters i.e., Kalavva
(defendant No.1) Savakka (plaintiff No.1) and Gouravva
(plaintiff No.2), as his legal heirs. The widow of propositus
i.e., Borawwa died in 2003. Basalingappa died leaving
behind his widow Neelawwa (defendant No.2) and three
sons, namely Mallappa (defendant Nos.3), Suresh
(defendant No.4), and Rajashekar (defendant No.5), and
one daughter by the name of Sunanda (defendant No.6)
as his legal heirs. They succeeded in the estates he left
behind. The plaintiffs and the defendant Nos.1 to 8
constitute a Hindu Undivided joint family and the suit
schedule properties are the ancestral family properties. It
is contended that there has been no partition with respect
to suit properties between the plaintiffs and the defendant
Nos.1 to 8. It is further stated that the plaintiffs jointly
have a 2/6th share in the suit properties. The defendants
attempted to alienate the suit properties in favour of
Dalmia Company by ignoring the legitimate shares of the
plaintiffs. The plaintiffs demanded their share by metes
and bounds, but the defendants refused to effect a
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partition. Hence, a cause of action arose for the plaintiffs
to file a suit for partition and separate possession.
Accordingly, prays to decree the suit.
4. Defendant No.3 filed a written statement.
Defendant Nos.2, 4, 5, 7 and 8 have adopted the written
statement filed by defendant No.3. Defendant No.3
admitted the relationship between the parties and the
nature of the suit properties as that of joint family
properties at one point of time. It is contended that the
plaintiffs and defendant No.1 have orally relinquished their
rights in item Nos.2 to 5 of the suit schedule properties
and in respect of house properties bearing VPC Nos.726,
1243 and 1335 of Yadawad village in favour of defendant
Nos.7, 8 and the deceased Basalingappa. The factum of
relinquishment was reduced into writing in the form of a
document dated 26.06.1991. The plaintiffs have no right
to seek partition regarding the suit properties. Defendant
No.8 filed a suit in O.S.No.320/1992 for partition
regarding the family properties against defendant No.7
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and deceased Basalingappa, on the file of Additional Civil
Judge, Gokak. The said suit ended in a compromise, and
a compromise decree was drawn. It is contended that as
per the compromise decree, item No.1 of the suit schedule
land is the exclusive property of defendant Nos.3 to 5 and
one Chinnappa, i.e., defendant No.9 and Siddappa. It is
contended that the suit is bad for non-joinder of necessary
parties i.e., Chinnappa and Siddappa, whose names are
appearing in the record of rights in respect of item No.1 of
the suit schedule landed property. The suit filed by the
plaintiffs is barred by limitation. Hence, prays to dismiss
the suit.
5. The plaintiffs filed a rejoinder to the written
statement filed by defendant No.3, denying the binding
nature of the compromise decree passed in
O.S.No.320/1992 and prays to decree the suit.
6. The trial court, based on the pleadings of the
parties, framed the issues and additional issues.
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1) Whether the plaintiffs prove that the suit
properties are the joint family properties of the
plaintiffs and defendants?
2) Whether the defendants prove that the plaintiffs
have relinquished their right in the suit properties?
3) Whether the suit is bad for non joinder of
necessary parties?
4) Whether the plaintiffs are entitled for partition and
separate possession of their share in the suit
properties?
5) What decree or order?
Additional Issue:
1) Whether the suit is barred by time under Section
103 of the Limitation Act as contended in para
No.17(A) of the written statement?
7. The plaintiffs to substantiate their case, plaintiff
No.2 was examined as PW.1, examined two witnesses as
PWs.2 and 3 and marked 12 documents as Exs.P1 to P12.
In rebuttal, defendant No.3 was examined as DW.1 and
marked 42 documents as Exs.D1 to D42. DW.1 did not
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tender himself for cross-examination. The trial court, after
recording the evidence, hearing on both sides, and
assessing oral and the documentary evidence, answered
issue Nos.1 and 4 partly in the affirmative, issue No.2 and
the additional issue in the negative, issue No.3 does not
survive for consideration and issue No.5 as per the final
order. The suit of the plaintiffs was partly decreed by
rejecting their claim for partition in respect of item Nos.1
and 2 of suit A schedule landed properties. It is declared
that the plaintiff Nos.1 and 2 are entitled to 7/105th share
each in item Nos.3 to 5 of suit A schedule landed
properties and item Nos.1 to 6 of suit A(1) schedule house
properties, vacant sites and shop building. Likewise,
defendant No.1 is also entitled to 7/105th share, defendant
Nos.2 to 6 are collectively entitled to 28/105th share and
defendant Nos.7 and 8 are each entitled to 28/105th share
in the family properties, and the defendants are liable to
pay separate court fees for carving out their respective
shares as declared above.
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8. Defendant Nos.2 to 8 aggrieved by the
judgment and preliminary decree passed in
O.S.No.92/2008, preferred this appeal.
9. Heard the learned counsel for defendant Nos.2
to 8 and learned counsel for the plaintiffs.
submits that the plaintiffs and defendant No.1 have
relinquished their rights in item Nos.2 to 5 of suit
properties and house properties in favour of defendant
Nos.7, 8, and deceased Basalingappa. The said
relinquishment was reduced into writing in the form of a
document dated 26.06.1991. In view of the
relinquishment of rights in favour of defendant Nos.7, 8,
and deceased Basalingappa, the plaintiffs have no right to
seek partition in respect of the suit properties. She also
contended that defendant No.8 filed a suit in
O.S.No.320/1992 for the partition of family properties
against defendant No.7, and deceased Basalingappa. The
said suit ended in a compromise. The said compromise
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decree is binding on the plaintiffs. She submits that the
trial court has not properly considered the documents
produced by the defendants i.e., Ex.D1- relinquishment
deed, which discloses that the plaintiffs and defendant
No.1 had relinquished their rights in favour of defendant
Nos.7, 8, and deceased Basalingappa. She further submits
that the plaintiffs were aware of the compromise decree
passed in O.S.No.320/1992. The suit filed by the plaintiffs
is barred by limitation. Hence, on these grounds, she
prays to allow the appeal.
11. Per contra, learned counsel for the plaintiffs
submits that suit schedule properties are the joint family
properties of the plaintiffs and defendants. The plaintiffs
and defendants are the members of a Hindu Undivided
Joint Family, and no partition is effected. He submits that
the compromise decree passed in O.S.No.320/1992 is not
binding on the plaintiffs as they are not parties to the said
suit. The plaintiffs were not aware about the compromise
decree passed in O.S.No.320/1992. The said compromise
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decree was obtained behind the back of the plaintiffs. The
trial court was justified in passing the impugned judgment.
Hence, the impugned judgment passed by the trial court is
just and proper and does not call for any interference.
Accordingly, prays to dismiss the appeal.
12. Perused the records and considered the
submissions of the learned counsel for the parties.
13. The points that arise for our consideration are
as follows:
1) Whether the plaintiffs prove that the suit schedule
properties are the joint family properties of the
plaintiffs and the defendants?
2) Whether defendant No.3 prove that the plaintiffs
and defendant No.1 had relinquished their rights
in the suit properties?
3) Whether the defendants prove that the judgment
and decree passed by the trial court is perverse
and arbitrary?
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4) What order or decree?
14. Re-Point No.1: It is the case of the plaintiffs
that the suit schedule properties were owned and
possessed by propositus Mallappa. He died, leaving
behind his legal heirs. The suit schedule properties are
the ancestral family properties of the plaintiffs and the
defendants, and no partition is effected in respect of the
suit schedule properties between the plaintiffs and
defendant Nos.1 to 8. To prove that the suit schedule
properties are the ancestral joint family properties, the
plaintiffs have produced the documents, marked as,
Exs.P1 to 6 are the record of rights. Ex.P1 is the record of
rights in respect of land bearing Sy.No.304/4B; Ex.P2 is
the record of rights in respect of land bearing
Sy.No.304/4A stands in the name of Dalal Chennappa
Danappa, Irappa, Ex.P3 is the record of rights in respect of
land bearing Sy.No.431/1 stands in the name of Mallappa
and Irappa, and Ex.P4 is the record of rights in respect of
land bearing Sy.Nos.224/1 stands in the name of
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Mallappa, Suresh, Rajshekar basalingappa, Exs.P5 and 6
are the record of rights in respect of land bearing
Sy.No.304/1, Exs.P7 to 12 are the house property
extracts.
15. From the perusal of the records produced by
the plaintiffs, it discloses that the properties were the
ancestral joint family properties of the plaintiffs and the
defendants. In the course of the cross-examination of
PW.1, it was suggested to PW.1 that plaintiffs and
defendant No.1 relinquished their rights in respect of the
suit schedule properties in favour of defendants Nos.7, 8,
and deceased Basalingappa. The said suggestion was
denied by the plaintiffs, and it is suggested to PW.1 that
the plaintiffs were aware of their compromise decree
passed in O.S.No.320/1992. The plaintiffs have no right to
claim partition regarding the said properties. The said
suggestion was denied by PW.1. The plaintiffs also
examined two witnesses as PWs.2 and 3. They have
deposed that suit schedule properties are the ancestral
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joint family properties of the plaintiffs and the defendants,
and no partition is effected between the plaintiffs and the
defendants. They also deposed that the plaintiffs and
defendants are in joint possession of the suit schedule
properties.
16. In rebuttal, defendant No.3 was examined as
DW.1. DW.1 has deposed that the suit schedule properties
are ancestral joint family properties, and the plaintiffs and
defendant No.1 relinquished their rights in favour of
defendant Nos.7, 8, and deceased Basalingappa. The
plaintiffs have no right to claim partition in suit schedule
properties.
17. From the perusal of the evidence of DW.1,
DW.1 admits regarding the nature of the suit schedule
properties, as the ancestral joint family properties and the
relationship between the parties to the suit. In view of the
admission of the defendants regarding the nature of the
suit schedule properties, the plaintiffs have proved that
the suit schedule properties are the joint family properties
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of the plaintiffs and the defendants. In view of the above
discussion, we answer point No.1 in the affirmative.
18. Re-Point No.2: It is the defence of the
defendants that the plaintiffs and defendant No.1 had
relinquished their rights in favour of defendant Nos.7, 8,
and deceased Basalingappa and to demonstrate that the
plaintiffs and defendant No.1 executed the relinquished
deed, produced the document, marked as Ex.D1. Ex.D1 is
the unregistered relinquishment deed. By Ex.D1, the
defendant Nos.7, 8 and deceased Basalingappa had not
acquired any right, title or interest over the suit schedule
properties. It is well established that if a value of an
immovable property worth more than Rs.100, the release
of rights on plaintiffs must be made through a registered
instrument as per Section 17 of the Registration Act,
1908. Admittedly, Ex.D1 is an unregistered relinquishment
deed. In the absence of a registered instrument, Ex.D1
cannot be accepted. The defendants failed to establish that
plaintiffs and defendant No.1 had acquired the title by
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Ex.D1. Ex.D1 is inadmissible in evidence. In view of the
above discussion, we answer point No.2 in the negative.
19. Re-Point No.3: The trial court, considering the
admissions of the defendants regarding the relationship
between the parties to the suit and the nature of the suit
schedule properties, has rightly held that the plaintiffs are
entitled to a share in the suit schedule properties and
further, the defendant Nos.7, 8, and deceased
Basalingappa have failed to prove that they have acquired
title over the suit schedule properties by Ex.D1. The trial
court has rightly decreed the suit of the plaintiffs. We do
not find any error in the impugned judgment. We concur
with the judgment passed by the trial court. Accordingly,
we answer point No.3 in the negative.
20. Re-Point No.4: In view of answering point
Nos.1 to 3 in favour of the plaintiffs, we proceed to pass
the following:
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ORDER
The appeal is dismissed.
The judgment and decree passed by the
trial court, is hereby confirmed.
No order as to the costs.
In view of the dismissal of the appeal, pending IA, if
any, does not survive for consideration and is accordingly
disposed of.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
SKS
CT: BSB
